1. Ia this appeal a reference has been made by Prideaux, A.J.C, in the following terms:
“The question is whether the view expressed by Kotval, a. J.C, in Dwarkadas v. Ghasiram A.I.R 1921 Nag. 5 , 17 N.L.R 143 is not too narrow. Is it necessary for a creditor, claiming on the strength of a money-decree rateable distribution from the proceeds of a sale of his debtor's property about to take place at the instance of another creditor, to ask himself for attachment and sale of that property, or is it sufficient to merely ask for rateable distribution? The question is of general importance and I would ask for a Bench to decide it.”
2. The facts of the case have been fully stated in the judgments of the lower Courts and are not disputed.
3. It is admitted that the respondent Gopal was executing his decree against Sakharam in Civil Suit No. 170 of 1924 and that he had attached immovable property belonging to Sakharam, and an auction-sale was held on 22nd May 1925. On the day of the sale the appellant Balaji, who had obtained a decree against Sakharam in Civil Suit No. 217 of 1924, made an application for rateable distribution before the sale proceeds actually reached the Court. It may be noted that the Court, which tried both the Civil Suits Nos. 170 of 1924 and 217 of 1924, was the same, namely the Court of the Subordinate Judge, Warora. The Subordinate Judge allowed the application for rateable distribution, and Balaji was awarded a sum of Rs. 198 out of the sale proceeds by way of rateable distribution. Gopal, thereupon, filed a suit for recovery of this amount plus Rs. 16-3-0, costs in the proceedings for rateable distribution, on the ground that rateable distribution was wrongly allowed and that this sum should not have been paid to Balaji. The Sub-Judge, 2nd Class, Warora, who tried the suit, decreed the claim in favour of the plaintiff and that decree was upheld by the Additional District Judge, Chanda, on appeal. In second appeal to this Court a reference has been made as stated above.
4. The only point to be decided is whether the application by the appellant for rateable distribution can be held to be an application for execution within the meaning of Section 73 of the CPC. In the ruling in Dwarkadas v. Ghasiram A.I.R 1921 Nag. 5 , 17 N.L.R 143 (at p. 144) Kotval, A.J.C, has held that
“one of the conditions which must exist before a decree-holder may be entitled to a rateable distribution is that he must, prior to the receipt of assets, have applied to the Court by which the assets are held for execution of his decree: Chuni Lal v. Jugal Kishore [1905] 27 All. 132 , 1 A.L.J 519 , (1904) A.W.N 188.” and that
“such an application must be in the form prescribed by O. 21, R. 11(2).”
5. In the reference an opinion is called for as to whether this view is too narrow, i.e, it is questioned whether the application for execution must actually ask for attachment and sale of the property, which is already attached, or whether it is sufficient to ask for rateable distribution only. Kotval, A.J.C, has held that the application for execution must be in the form prescribed by O. 21, R. 11; and according to that order it must be stated in the application the mode in which the assistance of the Court is required; namely, whether:
“(i) by the delivery of any property specifically decreed;
(ii) by the attachment and sale, or by the sale without attachment, of any property;
(iii) by the arrest and detention in prison of any person;
(iv) by the appointment of a receiver;
(v) otherwise, as the nature of the relief granted may require.”
6. It would seem, then, that, for an application for execution to be a valid application, there must be an application for some definite form of execution. Rateable distribution as such is not a form of execution; nor do we think that it can be included in Cl. (j)(v) “otherwise, as the nature of the relief granted may require.” It may be noted that, under the Code of Civil Procedure, there is no application for rateable distribution as such. S. 73 only lays down that the assets shall be rateably distributed among all persons who have made applications to the Court for the execution of their decrees. It is not even necessary, according to that section, for the decree-holders to make an application for rateable distribution. All that is necessary is that the decree-holders shall have applied to the Court, which holds the assets, for execution of their decrees before the receipt of the assets. It may further be noted that the particulars given in sub-Cl. (a) to (i) O. 21, R. 11, Cl. (2), are only particulars which can be obtained from the register of civil suits and which can be supplied by the reader of the Court. It is with regard to these particulars that applications have to be checked by the readers and returned for amendment, if found to be incorrect. There can hardly ever be a case of an application being amended with regard to the particular mode of execution sought. There is, we think, then, no force in the argument now put forward by the learned counsel for the appellant that the application asking for rateable distribution should have been returned for amendment.
7. We are of opinion, then, that an application that only prays for rateable distribution is not a valid application for execution within the meaning of O. 21, R. 11 of the that CPC does not recognise an application for rateable distribution as such and that, in order to obtain rateable distribution under S. 73, a decree-holder must have made an application for execution to the Court, praying for execution of his decree in one of the ways mentioned in O. 21, R. 11, before the receipt of assets by the Court. The learned counsel for the appellant has referred to Article 182, Cl. 5, Lim. Act, and contended that it has been held that an application, even though it did not mention the way in which the decree-holder sought the assistance of the Court in executing his decree, is a step in aid to save limitation. This point seems to be one of some difficulty and there have been conflicting rulings in the matter; but, in any case, it seems that an application must at least ask for notice to be issued to the judgment-debtor to save limitation. We would refer in this connexion to two rulings of this Court in Mukund Ram Sukal v. Harnarain [1898] 11 C.P L.R 157. The analogy, however, of what might or might not be done to save limitation under Article 182 cannot, we think, be applied to an application for execution according to Section 73 of the CPC. In the ruling in Mukund Ram Sukal v. Harnarain [1898] 11 C.P L.R 157, Ismay, Offg. J.C, did not decide whether the application was made according to law for execution or only to take some step in aid of execution. We are of opinion that an application which does not specify the way in which the assistance of the Court is sought for executing the decree according to O. 21, R. 11, is not application for execution according to law, even though it may be an application which can be considered, as a step in aid of execution so as to save limitation. We would refer to the ruling in Arunachellam Chettiar v. Haji Sheek Meera Rowthar [1910] 34 All. 25 , 7 I.C 856 , (1910) M.W.N 688 which has been referred to by Kotval, A.J.C, in the ruling in Dwarkadas v. Ghasiram A.I.R 1921 Nag. 5 , 17 N.L.R 143, and would quote with approval the following passage from pp. 26 and 27 of the Madras ruling:
“But there is no authority for the view that a mere application for rateable distribution is an application for execution as contemplated by S. 295. On the other hand, it has been held that it is not: see Ramjas Agarwala Decree-Holder, v. Guru Charan Sen Opposite Party. [1910] 11 C.L.J 69 , 3 I.C 105 , 14 C.W.N 396. S. 230 of the Code provides for an application for execution and S. 235 specifies the form and contents of that application. The mere application for rateable distribution, therefore, which does not comply with the requirements of S. 235 in form or substance can not be treated as the sort of application for execution falling within the scope of S. 295.”
8. We are of opinion, then, that the question referred to this Bench must be answered in the negative, that the view, expressed by Kotval, A.J.C, in Dwarkadas v. Ghasiram A.I.R 1921 Nag. 5 , 17 N.L.R 143 is correct and that a creditor claiming rateable distribution on the strength of a money decree must himself ask for attachment and sale of the property or for execution of his decree by one of the modes specified in O. 21, R. 11(J) of the CPC.
JUDGMENT
9. (11th March 1929). In view of the opinion now given by the Bench, to which a reference was made, this appeal must fail. The view taker by the Courts below is correct and the appeal is, therefore, dismissed. All costs will be borne by the appellant.
S.N/R.K
10. Appeal dismissed.